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What are we each entitled to in our divorce settlement?

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House

  • michaelj560
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27 Feb 08 #15166 by michaelj560
Topic started by michaelj560
Colleagues,

much to my horror my parent might be heading for a divorce, now currently my brother, aged 40, lives with them, With the house being paid for, would my Dad have to sell the house as part of the settlement, and can my Mum still get a divorce if my Dad refuses,

thanks

Michael

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27 Feb 08 #15169 by mike62
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Michael,
Taken from the Wikivorce step-by-step guide to divorce, reasons for divorce (from Resources Menu at the top):

2) What grounds to petition under (i.e. what reasons to give for the marriage break-up).

The only ground for divorce is that the marriage has irretrievably broken down. There are five ways, known as the five facts, of demonstrating that the marriage has irretrievably broken down. One of the following has to be proved:-

1. Adultery
Adultery is voluntary sexual intercourse between a married person and someone of the opposite sex other than the spouse. It must be shown that adultery has been committed and that you, the Petitioner, finds it intolerable to live with your spouse for whatever reason. The adultery ground cannot be used if you continue to live with your spouse, as wife and husband, for more than six months after the last occasion on which you learned that adultery had occurred. There is no need to name the person with whom the respondent has committed adultery, although you may want to do so if you wish to claim costs against them. However, you should state dates and places where the adultery took place, if details are known.

2. Unreasonable behaviour

Unreasonable behaviour is behaviour by the respondent which means that the petitioner cannot reasonably be expected to live with her / him any longer. There is no legal definition of unreasonable behaviour but it includes such behaviour as physical and mental cruelty to you or your children, verbal abuse, financial irresponsibility, drunkenness or transmission of certain sexually transmitted diseases.

Usually, there will have to have been a number of incidents. Each incident in itself does not have to be serious. A long period of trivial incidents may well be considered sufficient to justify a divorce. One very serious incident may also be sufficient, for example, if the respondent has sexually abused a child. You should provide a detailed account of the behaviour which you consider has led to the breakdown of the marriage. It is helpful to include approximate dates and places of incidents. This enables the respondent to understand what is alleged and helps the district judge decide whether the behaviour was unreasonable. If you have continued to live together for six months after the last incident of unreasonable behaviour, this may be used to indicate that you can be expected to continue living together. It may result in the divorce not being granted.

3. Desertion

Desertion must be for a two year period against your wishes without justifiable cause. This particular reason is seldom used these days.

4. Two years separation and both parties consent to a divorce

Separation usually means that you have not been living in the same household, although it is possible that you may have remained in the same home but you must be able to demonstrate that you have not shared meals, slept together or provided services for each other, such as washing, cooking or cleaning. If you have lived together since the separation for periods of less than six months this will not prevent a divorce on these grounds, but the period of living together will not count as part of the two years or five years.

5. Five years separation when only one of the parties consents

If one of the parties wishes to divorce and the other party does not, the Petitioner can start proceedings without the Respondent consenting after five years of living apart.


As to the house, too many variables to consider to answer

Age of parents, length of marriage, income (individual and/or joint), pensions, investments, assets, liabilities, special needs of parents or dependants.

If you want to collect that information, you can run it through the Wikivorce calculator. (Resources Menu)

Typically in a long marriage division of assets starts at 50:50. This is slewed based upon the factors above. As the marital home is usually the largest asset, it often needs to be sold for the parties to divide their assets. But not necessarily. Lot more info needed for comment.

Tough one for yo. And your brother.

Hope it helped, take care
Mike

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